ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00013891

Parties:

Complaint(s):

Date of Adjudication Hearing:  05/03/2021 and14/05/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

The complainant was not represented and their presentation of the complaints at the hearing were difficult to fully understand. The first hearing was adjourned to afford the complainant the opportunity to provide a more concise submission of the issues relating to the alleged acts of discrimination. During the second hearing the basis of the complaints became more evident and following that hearing both parties were invited to submit relevant documentation to support their positions. Both parties made subsequent submissions, and the evidence deemed relevant to the complaints were considered.

Background:

The complainant is a Laboratory Assistant and the respondent is a Government Department that operates a laboratory. This complaint refers to alleged acts of discrimination, harassment, and victimisation of the complainant by the respondent on the grounds of disability, and that the respondent failed to provide reasonable accommodation relating to a disability.

The respondent has denied that it discriminated the complainant and further submitted that the matters brought to the within hearing have already been subject to an independent investigation where the allegations have not been upheld.

In their written complaint of 11th March 2018, it was submitted that the complainant had lodged a formal complaint under the respondent’s Dignity at Work Policy on 12 January 2018, but as matters had not been progressed the complainant submitted the within complaint to the WRC on 11th March 2018 as they were concerned it would be out of time if matters were not resolved internally.  In the interim the scheduled hearings of the complaint in the WRC were adjourned on a number of occasions whilst the parties awaited the report of the Dignity at Work complaint, and for reasons of the parties non availability to attend hearings when they were scheduled.  Since then, and before the Dignity at Work investigation report has been issued, and the respondent has submitted that the within complainant should be set aside in light of the findings from the investigation which did not uphold the complaints.

Summary of Complainant’s Case:

The complainant in their written submission maintained that the complaint was lodged as they had concerns that they may be out of time if the internal investigation of their complaint did not progress. They maintained in that submission they had no wish to duplicate the formal investigation process.

The complainant advised that they previously submitted a complaint to Equality Tribunal in 2013 in relation to a disability.  That complainant was heard on 5 March 2021 by the WRC in conjunction with this complaint.

By way of background to the complaint raised on 11 March 2018, the complainant advised that in March 2016 they had a workplace accident which injured their hand and back. They maintained that in the aftermath of the accident they were treated with extreme hostility where they were harassed, bullied, and victimised by their supervising officer, and such discrimination had been taking place since 2013. The complainant further submitted that their supervising officer was encouraged by other managers who had knowledge of the abuse and of the complainant’s upset, but the respondent did nothing to alleviate the situation. It is the complainant’s contention that the necessary steps were not taken by management to discourage the behaviour of their supervising officer.  It was submitted that the initial harassment that began in 2013 related to the complainant doing their work “too well” when they returned to work after a period of absence. This complaint also included an incident in August 2015 when the complainant was tasked with cleaning a fridge where they had to bend down, and this work aggravated a kidney infection.

The specific complaint under consideration at the within hearing refers to allegations of harassment and discrimination which continued from March 2016 because the complainant could not physically perform certain tasks due a workplace accident that occurred on the 9 March 2016, and that the respondent was trying to hurt the complainant by requiring them to do tasks.

Relevant to the within complaints, it is the complainant’s contention that in 2016 they were working on a task which caused a stinging in the eye and required a hospital visit and sick leave.  The complainant submitted that they had a fall on 9th March 2016 and after two weeks sick leave returned to work on 24th March 2016.  When they returned to work, they were told to clean out a fridge and this caused them further pain, so they asked to do other work but were not accommodated. They alleged they were told “if you can walk you can work”.  The complainant maintained this they experienced acts of discrimination, harassment, and victimisation that included inappropriate and sadistic behaviour with regard to the allocation of unreasonable tasks.

On 6th April 2016 the complainant submitted that they were tasked with further physically arduous work which required the wearing of a fume hood which was uncomfortable and hurt their back.  They had to take further sick leave for two weeks and submitted that their supervising officer was hostile towards them. When they retuned to work, they met with a colleague who was pregnant and discussed a fall, and the complainant raised the matter with the health and safety representative. They maintained they were victimised for reporting this matter to health and Safety. The complainant had to take a further period of sick leave and when they returned in May 2016, they were advised by the Chief Medical Officer (CMO) to return on a part time basis. However, their work still required them to wear the fume hood. The complainant also submitted that in August 2016 they nearly fell and strained muscles.

The complainant also submitted that they did not pass their 2016 PMDS, and the reason they did not meet their targets was because they were not reasonably accommodated. They maintained the failure in their PMDS report issued in February 2017 did not allow for their disability due to the injury in March 2016, and this amounted to discrimination. The complainant also submitted they were harassed for raising the health and safety issues, which impacted in their 2016 PMDS report. 

The complainant further submitted that the absence of their supervising officer caused difficulty in officially reporting the complainant’s absences, particularly after the workplace accident in March 2016.  The complainant maintained they were deducted €7,493.79 from their pay and this deduction was further discrimination and victimisation. The complainant maintained that their absence was due to workplace injuries and therefore the deductions should not have occurred, and they were penalised by the actions of their supervisor on 9 September 2016 when their salary was to be deducted, and again on 7 December 2017.

In April 2017 the complainant was asked to lift a bag and was injured again which required them to attend a physiotherapist.  In May 2017 a health and safety visit provided ergonomic advice, but the complainant was still required to do work that required wearing a fume hood. In December 2017 the CMO advised that the complainant was to do less work with the fume hood and the complainant contended this was recognition of reasonable accommodation that should have been provided to them in 2016.

The complainant maintained they had applied for training, but their application was not approved.  They gave an example of this being an application for conflict management training.

The complainant submitted that test kits were ordered but in July 2017 they were not informed the kits had arrived.  This meant the complainant had to do more arduous work in August 2017 which impacted on their injury.  The complainant maintained that had the kits been provided they would not have had to do the more physically challenging work.  However, the complainant discovered in September 2017 that the kits had actually arrived in July, but the supervising officer had not informed them. It was contended this amounted to further victimisation of the complainant because of their injury.

The complainant also maintained they were exposed to an offensive poster on 12 September 2017 when they entered a work area. They encountered a poster that stated P**S OFF and maintained this was not properly addressed by the respondent and amounts to discrimination.

They submitted that they were also unfairly treated and victimised by the supervising officer who did not advise them of the availability of Test Kits in autumn 2017 which would have enabled them to do work that was less arduous.  However, the requirement to do more arduous work because the test kits were not available amounted to a victimisation due to their injury.

Summary of Respondent’s Case:

The respondent submitted that the matters within the complainant were subject to an external investigation under the Positive Working Environment Policy.  It submitted that delays were encountered in completing that report due to the volume of information submitted and the complexities of the allegations.  However, at the time of the within hearing the investigation had concluded and none of the complaints were upheld.

Based on the written complaint to the WRC, the respondent understood the within complaints related to bullying and harassment and when they were made aware of the specifics of the within complaint at the hearing on 5 March 2021 and 14 May 2021 they made further submissions in response to the complaints.

Preliminary Objection – Matters Complained of Not Within Time Allowed

The respondent contended the complainant had lodged the complaint with the Workplace Relations Commission on 11th March 2018 and where the most recent incident of discrimination that was alleged was an incident relating to a sign (poster) the complainant came across on 12 September 2017. The respondent submitted that this event was fully investigated as part of the Dignity at Work investigation and after taking evidence from the complainant, the respondent and another witness, the Investigator concluded that the complainant failed to provide any evidence that the placement of this sign in September 2017 was directed at the complainant; that there was no connection between the offensive poster and a disability; or that the complainant’s supervisor either  made the poster or asked an employee to place it in the workplace. The respondent submitted by way of preliminary submission that this complaint is outside the allowable time limit of 6 months under the Employment Equality Acts 1998-2015 and should therefore be dismissed.

Response to the complaints

In response to the injury received by the complainant in March 2016 following a slip and fall, the respondent contended that no disability was formally declared by the complainant in relation to this accident.  Similarly, no formal reasonable accommodation request was made by the complainant in respect of this injury. The complainant had contacted Personnel on 6 May 2016 noting they were returning to work after a fall and was seeking support, mentioning the CS rehabilitation scheme. On 9 May 2016, Personnel replied (cc’ing the Disability Liaison Officer DLO) enclosing a copy the Return-to-Work Procedures and Processes which addresses rehabilitation and reasonable accommodation. The DLO then followed up by email dated 10 May 2016 and set out in detail how the complainant could go about making a reasonable accommodation request. On 10 May 2016 the complainant emailed DLO stating that a physiotherapy session appeared to have aggravated their injury.

The respondent contended that from the time of the complainant’s injury the complainant attended work intermittently on 18 days in May 2016. On 13 May 2016 local management emailed Personnel noting that they had met with the complainant to discuss (i) fitness to work following their accident, (ii) attendance and absence and (iii) “options to help the complainant address any work-related issues”. The respondent maintained that at this time the complainant clarified that all absences since the accident were attributable to the accident and stated that they had some difficulty working at the bench or with cabinets where they experienced recurring pain. Local management expressed concern that the complainant might not be fit to return to work and sought a CMO referral.

On 17 May 2016, the complainant was referred to the CMO and attended on 1 June 2016. The CMO report stated that the complainant’s condition had improved following their accident and that they were medically fit enough to resume work, however it also recommended that resumption should be on a reduced hours basis. The CMO also stated that a further return to work meeting would be useful and noted that if the complainant had any ongoing issues, the DLO might be of assistance. A copy of the CMO report was released to the complainant. Personnel then issued a letter on 9 June 2016 advising that a return to work meeting would be held with her line manager and setting out a schedule for a phased return to work over four weeks on reduced hours.

Furthermore, the applicant submitted that the complainant has stated they have “no wish to duplicate this formal process”, referring to the submission of their complaint under the Civil Service Dignity at Work policy (“the DAW policy”). The respondent contended that as the complaint under the DAW policy has now been investigated, and a detailed and thorough report had been issued, that the matters presented in the within complaint are a duplication of the DAW investigation, and as such have now been appropriately dealt with under the DAW policy.

The respondent maintained the complaints regarding the complainant being deliberately assigned tasks that were inappropriate due to an injury they had was investigated in the DAW investigation and it was concluded there was no evidence that the Respondent assigned work to the complainant in a deliberate attempt to cause them pain. In addition, the respondent contended that the complainant never made a submission to be reasonably accommodated, and it was not aware they had either a kidney infection or an injury that impacted their work. They further submitted that the complaint regarding a disability that related to an injury occurred in 2016.Whilst refuting any discrimination had occurred, the respondent contended that the complaint was out of time to be heard by the WRC.

The respondent also contended there was no acts of discrimination submitted by the complainant and that their evidence was difficult to follow. 

In response to the complaint relating to the PMDS process, the respondent submitted that the complainant has already availed of the PMDS appeals process, and that constructive and fair criticism of a staff members performance does not constitute bullying under the dignity at work policy. The respondent contended that the DAW investigation found no grounds to conclude that the Complainant’s 2016 PMDS review undermined their entitlement to dignity at work.

In response to the claim that there was deliberate blocking of the complainant to attend training courses, the respondent submitted that this matter was considered by the DAW investigation which found no evidence that the respondent was responsible for declining the complainant’s request to attend a conflict resolution course.  The respondent contended that training is requested through the training branch and at the time embargos and controls existed that training was only for work related tasks.

In response to the complainant being tasked to work in a fridge on their return to work after an injury on 24 March 2016, the respondent submitted that the DAW investigation looked at this allegation and found there was no evidence that the respondent was aware of the complainant’s injury when they asked the complainant to remove a sample from the fridge. It also notes that this was a perfectly reasonable task for respondent to have set for the complainant and that the respondent did not act inappropriately by instructing the complainant to do this work which. Concerning the allegation that the respondent gave the complainant an order to clean a freezer which involved stooping and was therefore unreasonable on the basis the complainant had an infection, the respondent advised this matter was also considered by the DAW investigation which found that there was no evidence the complainant’s supervisor was aware that the complainant had a urinary tract infection on the day in question.  The respondent maintained that the task assigned was a perfectly reasonable task for a manager to assign to their subordinate under the circumstances.

In response to the complaint of an unfair penalisation of salary which occurred on 9 September 2016, the respondent submitted that this matter was also considered by the DAW investigation which found there was no evidence that the respondent caused difficulties for the complainant in contacting and alerting from them of their absence from work.  The DAW investigation also concluded that there was no evidence the Respondent engineered an unjust recoupment of the complainant’s salary.

The respondent advised that the DAW investigation looked at the allegations of the complainant being subjected to menacing behaviour from their supervisor by shouting and growling, particularly in the months following her injury. The DAW investigation found there was no evidence submitted by the complainant to support the complainant’s version of events.

In response to the availability of test kits in July 2017, the respondent submitted that evidence demonstrated the kits had arrived in July 2017, but they had been kept in a store where it was unknown to the supervising officer, and that only became apparent in September 2107.  The respondent provided email evidence where they maintained that the complainant’s supervision officer had asked them about their planned work in August 2017, and a series of emails were exchanged between the supervising officer and the complainant relating to work priorities.  In that thread of emails, the complainant had asked about the test kits, but the emails demonstrate it was not known the kits had arrived until September 2017. The respondent maintained this issue was not raised as a disability complaint at the time.

In response to the complaint on 12 September 2017 concerning the offensive poster that was allegedly left by the supervising officer for the complainant to find, the respondent advised this matter was considered by the DAW investigation which found no evidence that the complainant’s supervisor was involved in this incident. The respondent acknowledged that a sign with the words P**S OFF was found by the complainant in a room they entered that afternoon. The respondent contended that it was not known who made the sign or left it in the room, that the room was not a room that was in general use, that it was not planned for the complainant to be in the room that day, and it was just coincidence that the complainant arrived there.  Whilst acknowledging the words on the sign were offensive, the respondent maintained it was not of a nature that would warrant serious misconduct, and under the circumstances it was not an issue that amounts to discrimination.

Findings and Conclusions:

This complaint refers to alleged acts of discrimination, harassment, and victimisation of the complainant as a consequence of them having a disability, and the failure of the respondent to address these concerns which allowed the complainant’s supervisor to act in a discriminatory manner towards the complainant.

The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in the Act referred to as ‘discriminatory grounds’). With reference to the within case, the discriminatory groundis where the complainant submitted that they have a disability,(in the Act referred to as “the disability ground”).

In addition, Section 8(1)(b) of the Act states an employer shall not discriminate in relation to conditions of employment. Section 8(4) of the Act states A person who is an employer shall not, in relation to employees or employment—(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or (b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

Under section 14 (7)(a)(i) of the Act, harassment is defined as any form of unwanted conduct relatedto any of the discriminatory grounds...being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  Section 14(7)(b) further defines Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

With regard to the within case, victimisation is defined under section 74(2) of the Act, as occurring where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to [inter alia] (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant...(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Findings on the Preliminary Objection Regarding the Complaints being Out of Time

The respondent submitted that the complaints were out of time, and in any event that they have already been heard as part of an investigation under its Dignity at Work policy.  It contended that the only complaints that fall within the time relate to the poster, but that issue was not upheld by the DAW investigation. 

I must therefore consider the matter of whether the complaints are within the time allowed under the Act before making a determination on the alleged acts of discrimination, harassment and victimisation.

Section 77(5) (a) of the Employment Equality Act 1998 (the Act), as amended, states Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.  Section 77(5)(b) of the Act states On application by a complainant the Director or Circuit Court, as the case maybe, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The Complainant has submitted that the most recent alleged acts of discrimination occurred on 17 December 2017 which involved notification of a deduction of their pay in circumstances where they argue that the absences that they encountered was due the failure of the respondent to provide them with reasonable accommodation, and the incident relating to the poster which occurred on 19 September 2017. I find that both of these complaints fall within the six-month time limit, and it is therefore within my jurisdiction to consider these matters.  I set out my findings on these complaints below.

The other complaints raised in the complaint form to the WRC includes issues in 2013 and 2015 which are out of time.  The complaint form also referred to a workplace injury that occurred in March 2016, maintaining the respondent’s handling of that matter amounts to discrimination. In considering this complaint, it is a matter of fact that following this injury and associated matters the complainant was reviewed by the CMO, and the complainant had a phased return to work from June 2016.  The complainant did not seek to formally register a disability, nor did they formally seek reasonable accommodation. During this time the complainant was aware of the process to seek recognition for having a disability and /or seeking reasonable accommodation. They were provided contact details for the Designated Liaison Officer who was copied on internal communications. However, the complainant did not declare a disability or formally seek reasonable accommodation. 

As the injury occurred in March 2016, and where the CMO certified the complainant fit to return to work, I do not find that a recognised disability existed. I find the respondent acted reasonably in ascertaining the medical status of the complainant to be fit for work, and a phased return to work was recommended. As these issues refer to March 2016, and in circumstances where no disability was deemed to exist at that time, I find the issues relating to the injury in March 2016 are deemed to be out of time.

The complaint form also refers to the PMDS process.  Having reviewed this claim the evidence supports that this refers to the complainant’s 2016 PMDS report where the final report was signed in February 2017.  I therefore find that this complaint falls outside the time limit set out in s77 of the Act. 

The complaint regarding the non-supply of test kits occurred between July and August 2017, which was the time the complainant was tasked to do more arduous work because of the non-availability of the test kits.  I find that this occurred outside the six-month timeframe and therefore conclude that this complaint falls outside the time limit set out in s77 of the Act.

Consideration of the claim that is within six months of submitting the complaint form

The complainant maintained they received notification of a recoupment of their salary amounting to €7,493.79 on 7 December 2017., and that this act discriminated against them on the grounds of a disability. It is a mater of fact that the complainant received the letter on 7 November 2017 and not 7 December 2017 as claimed. The evidence provided relating to this complaint supports that the deductions referred to overpayments made to the complainant during 2016 at a time that the complainant had exhausted their sick leave scheme.  The evidence records that the complainant was first put on notice of this decision in writing during September 2016, they challenged that decision at the time, and further correspondence was issued to them on 17 November 2017 confirming that recoupment of the overpayment was to be progressed. 

I therefore find that the act relating to this matter actually  occurred in September 2016, was appealed at the time by the complainant where the respondent maintained that the payments were legitimately deducted in accordance with its sick play scheme due to the absence record of the complaint.  As this act occurred in September 2016, I deem it to be out of time, and therefore outside my jurisdiction to consider.

The com maintained that they were exposed to a poster containing offensive words, and this amounts to discrimination. In considering this claim, the evidence provided corroborates that a poster was found by the complainant, and the complaint submits that this poster was offensive to them.  I am satisfied that the term P**S OFF being used in the workplace could be deemed to be offensive and unwelcome.  However, there is no evidence to support or corroborate that the poster was left in the workplace to intimidate complainant, and this matter has already been considered and decided upon in the DAW investigation. Moreover, the complainant has not presented any credible evidence that supports the poster is related to a disability, and that the complainant was treated less favourably for having a disability as a consequence of discovering the poster.  It is also clear when the complainant reported their concern to management at the time they were not raising the concern as an act of discrimination on the grounds of a disability. I therefore do not uphold that the respondent has breached its obligations regarding discrimination under section 6 or 8 of the Act in relation to this incident.   

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Having considered all the written and oral evidence in relation to this complaint, my decision is that most of the claims within this complaint are outside the time limits laid down in the Act. I find that as this element of the complaint fails to comply with the time limits prescribed in section 77(5) of the Employment Equality Act, I do not have jurisdiction to investigate these complaints.

For the claim that is within time my decision is that the complainant was not discriminated against, and I therefore decide this element of the complaint is not well founded.

Dated:   23rd June 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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